White House reconsiders holding terror trials in civilian court


The White House is considering an end to its effort to prosecute the suspected Sept. 11 plotters in a civilian court and may send them instead before military tribunals, in an apparent retreat from President Obama’s pledge to overhaul the Bush administration’s detention policies.

Last year, the Obama administration announced it would try Khalid Shaikh Mohammed and others in federal court in New York. That step came after Obama overhauled interrogation policies and ordered the shutdown of the U.S. military prison at Guantanamo Bay, Cuba.

But safety concerns about the trial have grown, and support for holding the trial in New York has eroded.

“It is politically untenable,” said one official, speaking on condition of anonymity because a decision had not been made. “No place wants to hold a trial.”

A return to military commissions, as the tribunals are known, would be a major concession to Republicans. And administration officials appear to be using the potential shift as a down payment on a political deal to speed the closure of the Guantanamo prison by allowing the federal government to purchase an Illinois prison to transfer detainees.

A formal recommendation has not yet been made to Obama, and an administration official said a decision remains weeks away. Still, the idea, first reported in the Washington Post, represents a trial balloon to test how the administration’s reversal would be received by liberals and conservatives.

Though several Republicans endorsed the plan to try the Sept. 11 suspects in military commissions, few seemed convinced Friday that Guantanamo should close.

Liberal groups reacted angrily, seeing the potential about-face as a betrayal of the president’s campaign promise and an unwelcome endorsement of Bush administration practices. They said the Obama administration would be closing Guantanamo only to re-create the same problematic situation on U.S. soil.

“The world wasn’t clamoring to close Guantanamo because it was built on some sacred Indian burial ground,” said Tom Malinowski of Human Rights Watch. “It was clamoring to close Gitmo because it stood for the militarization of justice in America and indefinite detention without charge. Keeping all of that preserves the essence of what people were objecting to at Gitmo.”

Sen. Lindsey Graham (R-S.C.) has been negotiating with the White House, including with Chief of Staff Rahm Emanuel, on a way to close Guantanamo but ensure that the government had the legal authority to hold detainees without trial. As part of his compromise, Graham had proposed moving several of the civilian trials to military commissions.

Graham said the potential shift by the White House was a “good start.” “It would give us a chance to close Guantanamo Bay safely,” Graham said on Fox News.

Charles Stimson, a former Pentagon detention official, said conservatives should embrace Graham’s proposal.

“You are going to see national security hawks like me get out in front and support the administration and try to convince skeptics, members of the conservative caucus, that they need to get behind this,” Stimson said.

But not all Republicans may be amenable to a deal. Senate Minority Leader Mitch McConnell (R-Ky.) praised the prospect of a military tribunal trial for Mohammed, but continued to assert that Guantanamo should remain open, despite the controversy it has generated around the world.

He argued that closing Guantanamo and opening a long-term detention facility within the United States would not neutralize international objections to the U.S. treatment of terrorism suspects.

At least on that point, human rights groups who opposed Bush administration detention policies agreed with Obama’s critics.

“Closing Guantanamo and moving the military commissions to the United States doesn’t really close the concept of Guantanamo,” said William Nash, a retired Army major general. “This bastardized version of justice known as military commissions . . . is leaving the job undone.”

Nash was among military officers who appeared with Obama on his second day in office last year as the new president signed an executive order to close Guantanamo.

“It is times like this, when things are difficult, that we need the president to stand up and do the right thing, and the smart thing, the thing that will protect our troops,” said John Hudson, a retired vice admiral and former Navy judge advocate general.

Malinowski of Human Rights Watch said abandoning trials in civilian court will not prevent the political headaches of trying to close Guantanamo, but will sap the benefits of shuttering the prison.

It would also make the administration look weak in Washington, Malinowski said. “The political cost is catastrophic,” he said. “It will invite endless bullying on national security. It is not the way to look strong.”

But some Democrats hoped the call to move Mohammed to military court would soften opposition to closing Guantanamo and moving detainees to the prison in Illinois. Before such a transfer could take place, Congress would have to give its stamp of approval.

Under the plan, the Bureau of Prisons would purchase the near-empty state prison in Thomson, Ill., to house both federal inmates as well as some of the detainees displaced by the closure of Guantanamo.

It would take time to upgrade the Thomson prison before any military commission trial could be held there. The prison needs security upgrades and construction of a trial facility, changes that would take until next spring, by some estimates.